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THE PEOPLE &C., RESPONDENT, v. OSCAR PAGAN, APPELLANT.

93 N.Y.2d 891 (1999).
April 29, 1999

1 No. 70

[99 NY Int. 0060]
Decided April 29, 1999


This opinion is uncorrected and subject to revision before publication in the New York Reports.

Abigail Everett, for appellant.
Karen Swiger, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed.

Defendant was convicted after a jury trial of three counts of murder, one count of attempted murder, and robbery. The Appellate Division affirmed, and a Judge of this Court granted defendant leave to appeal.

We conclude that defendant failed to preserve the issues he now presses before this Court. He argues that he was entitled to be present when, with all counsel present in Chambers, the trial court interviewed the surviving fourth victim, as to his identification testimony in connection with defendant's motion for a mistrial. Similarly, he contends that he had a right to be present when the court, after denying the mistrial and agreeing to defense counsel's request only for cautionary instructions, conducted inquiries of each individual juror to satisfy itself that none of the jurors was disqualified by the preceding developments.

Preservation of these claims is required, since judicial precautions in this case did not constitute material stages of the trial, and defendant's presence would not have had a substantial effect on his ability to defend against the charges ( see, People v Spotford, 85 NY2d 593, 596; People v Torres, 80 NY2d 944, 945; People v Ferguson, 67 NY2d 383, 390).

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Order affirmed, in a memorandum. Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.

Decided April 29, 1999